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Voting Rights

Catherine Engelbrecht, head of the “voter fraud” vigilante group True the Vote, testified this morning at a hearing on the nomination of Loretta Lynch to be U.S. attorney general. Engelbrecht discussed her claims that she was targeted by the IRS, but also criticized Attorney General Eric Holder for his work protecting voter rights.

Engelbrecht said she was “extremely disappointed” to hear comments from Lynch acknowledging that voter ID laws are meant to suppress minority voter turnout and applauding the Justice Department’s work protecting voting rights. (Lynch was merely acknowledging the reality: a federal judge in Texas, for instance, found that proponents of one such voter ID law “were motivated, at the very least in part, because of and not merely in spite of the voter ID law's detrimental effects on the African-American and Hispanic electorate.”)

She added that critics of voter suppression laws have it all wrong and that “the most significant voter disenfranchisement threat currently facing our country” is President Obama’s executive actions deferring deportation for some undocumented immigrants, whom she implied would illegally register to vote.

Engelbrecht has previously criticized a bipartisan effort to restore the Voting Rights Act as a “move toward race-based segregation” because it ensured federal oversight for areas with a history of disenfranchising minority voters.

Engelbrecht left out of her remarks a line in her official prepared testimony alleging that Holder has “created a radical, racialist agency that metes out social justice on an as needed basis to promote the advancement of a progressive agenda.”

The Senate Judiciary Committee held its first hearing today on Loretta Lynch’s nomination to be U.S. attorney general, which Senate Republicans mostly used as an opportunity to attack current Attorney General Eric Holder and to try to extract promises from Lynch that she would break course from Holder on issues like immigration enforcement.

But it might be tough for Lynch to completely appease Holder’s critics on the Right, who have repeatedly attacked the attorney general for working to fight racially discriminatory voting laws and acknowledging racial disparities in the criminal justice system.

In fact, J. Christian Adams, a former Justice Department official who has become one of Holder’s most prominent critics on the Right, attacked Lynch today for her statements implying that structural racism exists in areas like voting rights and law enforcement.

“I think that Lynch buys into this same grievance industry about structural racism in the United States, about how minorities cannot get a fair shake ever, that the system is stacked against them, that it’s a collectivist, anti-individual approach to things,” Adams warned the American Family Association’s Sandy Rios.

“I think that Lynch is going to sound a lot like an Eric Holder mini-me when it comes to election issues and voter ID,” he said.

Earlier in the interview, Adams discussed an article he co-wrote with the Heritage Foundation’s Hans von Spakovsky yesterday urging Republicans, as he told Rios, to use the Lynch hearings to “extract course corrections out of the Justice Department.”

In particular, Adams wants the Justice Department to stop hiring attorneys who have previously provided legal representation to terror suspects. (Similar attacks on DOJ attorneys by Liz Chaney in 2010 were condemned by a group of Bush administration officials as “shameful” and “unjust.”)

“We’ve had an attorney general who has turned toward lawyers who have worked for Al Qaeda terrorists, who were their attorneys, to then work at the Justice Department,” Adams said.

“That’s how crazy it’s gotten in the last six years, where it seems that one of the top qualifications to become a lawyer working for the Justice Department is that you used to work at Al Qaeda, or for Al Qaeda detainees.”

Adams demanded that Republicans “get a commitment out of [Lynch] to stop catering to this far-left-wing legal world that hates U.S. foreign policy, that hates detainee policy, that hates Gitmo, that that hates our war on terror.”

The Senate Judiciary Committee has released a list of the witnesses who will testify at this week's hearings on the nomination of Loretta Lynch to be attorney general, and two of them signal the GOP’s intention to tie Lynch to their criticism of Attorney General Eric Holder’s efforts to combat racial discrimination in voting rights and law enforcement.

Among them is Catherine Engelbrecht, a Tea Party activist who founded the group True the Vote to promote the myth of widespread voter fraud and who has clashed with Holder over his defense of voting rights, or what she calls his “radical, racialist assault on voters' rights across America.”

Also included is David Clarke, the sheriff of Milwaukee county, who has become a Tea Party hero for his criticism of protests of racial inequality in the justice system following a series of police killings of unarmed black men.

Both have become prominent Tea Party figures by voicing the line that racial inequality no longer exists in the U.S. and that the Justice Department’s efforts to stop voter suppression laws and combat discrimination in the criminal justice system are themselves racist. The Right cast Holder as the primary villain in this narrative, and prominent Holder critics such as the Heritage Foundation’s Hans von Spakovsky are using some of the same arguments to attack Lynch.

Engelbrecht’s attitude toward voting rights protections was perhaps most clearly illustrated with her reaction to a bipartisan bill meant to restore the Voting Rights Act after the Supreme Court gutted it in 2013.

In an email to supporters, Engelbrecht claimed that the effort to restore the Voting Rights Act — one of the great achievements of the Civil Rights Movement — was in fact a “terrible race based bill” that would “exclude millions of Americans from full protection of the law — based solely on the color of their skin.” She fumed that restoring federal voting rights oversight to areas with a history of racial discrimination in election laws should be called the “Voting Rights Segregation Act.”

Sheriff Clarke, meanwhile, has been a leading conservative voice against protests against police brutality and racial inequalities in the criminal justice system, and has expressed outrage that President Obama and Holder have expressed some support for the protests. Clarke, who is African American, went on Fox News in November to accuse the president of fueling “racial animosity between people” by supporting the protests and even suggested that Obama was encouraging protesters to riot “with a wink and a nod."

He also contended that Michael Brown, the unarmed black teenager who was shot by a police officer in Ferguson, Missouri, was a “coconspirator in his own demise” because he “chose thug life.”

Other witnesses signal the intention of Republicans on the Judiciary Committee to focus on what they argue are constitutional oversteps by Holder. Engelbrecht claims that the IRS has targeted her since she started her political activism and fellow witness Sharyl Attkinson claims that Holder’s Justice Department hacked into her personal computer. (A computer security expert reviewing Attkinson’s evidence for Media Matters said it looked more like a malfunction caused by a frozen backspace key.)

Kansas Secretary of State Kris Kobach, the influential architect of anti-immigrant and voter suppression measures throughout the country, said on his radio program this week that President Obama was shaped by an “affirmative action culture” that handed him achievements that “he was not winning…himself.”

Kobach spent a good part of the Sunday night program discussing President Obama’s election night press conference, where he said that he heard the concerns and frustration of the voters who sat the election out, which Kobach took to mean that Obama had made those nonparticipating voters into an imaginary “communist” voting bloc.

In response, a caller shared her theory that the president thinks “everything is all about him” and “is mentally incapable, I think it’s rendered him somewhat handicapped in his ability to process things” in a logical manner.

“You know, I wonder if goes all the way back to his upbringing, where, and I’m thinking more in terms of college and law school, where the affirmative action culture just lavished praise upon him and he could do no wrong,” Kobach responded. “And he got into Harvard Law despite not being that impressive a student and once there, he became law review editor because, ‘Oh my goodness, we have this wonderful student.’ He was not winning it himself, but he was told that he was great from the moment he set foot.”

Later in the program, Kobach lashed out at an Al Jazeera story exposing the deep flaws in a national program he has coordinated to help states purge their voter rolls of voters who they believe no longer live in the state.

“Let’s get down to bare bones here,” he said, “ultimately, some Americans care enough to vote and some Americans don’t.”

Calling Al Jazeera "a left-wing crackpot network in addition to being apologists for Islamic extremism,” he mocked the story’s conclusion: “Disenfranchising? Give me a break. Photo ID doesn’t disenfranchise anyone. Taking someone off the voter rolls because they moved from one state to the other and taking them off the first state doesn’t disenfranchise anyone.”

“But this is what the left does. Elections don’t matter to them because now they have this ridiculous, absurd excuse.”

In 2012, People For the American Way Foundation published a memo highlighting many of the legislative and administrative tactics states were using to undermine voter participation in elections, all under trumped-up claims of “voter fraud.”

Now according to a new Brennan Center report, recently-enacted restrictive voter laws may have helped tip the scales in the 2014 midterm elections this past Tuesday. A number of states around the country have implemented restrictions to voting, including new voter ID laws, cuts to early voting, and faulty voter purges. These changes have been found to have a negative impact on low-income voters, minority communities and young voters.

As quoted in a Mother Jones article yesterday, report author Wendy Weiser pointed out, "In several key races, the margin of victory came very close to the likely margin of disenfranchisement." One example from the article:

In 2013, North Carolina enacted a law—which Tillis helped write—limiting early voting and same-day registration, which the Justice Department warned would likely depress minority turnout. During the last midterms in 2010, about 200,000 North Carolinians cast their ballots during early voting days that the state's new voting law eliminated.

To read more about the attack on voters and how you can help fight back, check out The Right To Vote section on our website.

Voters across the country trying to cast votes in Tuesday’s elections ran into hurdles erected by Republican legislatures, governors and secretaries of state. Along with mechanical glitches and human error — which occurred in states with leaders on both sides of the political spectrum — voters faced new laws and policies that made it harder to vote.

In the presidential election year of 2016, it looks unlikely that those problems will subside — especially if Congress fails to restore the Voting Rights Act. The two states that had the closest vote tallies in the last presidential election — Florida and Ohio — will go into the presidential election year with Republicans controlling the offices of governor and secretary of state and holding majorities in their state legislatures.

Two influential elections for voting rights also took place in states unlikely to be presidential swing states. Kansas Secretary of State Kris Kobach, a national ringleader for advocates of restrictive voting laws, won reelection. In Arizona, which has been working with Kansas to defend their states' respective tough voting requirements, Republican candidate Michele Reagan also won her contest.

A week before Election Day, the “voter integrity” group True the Vote released a new smart phone app to empower its army of citizen detectives to report suspected incidents of voter fraud and intimidation across the country, in the hopes of creating, as True the Vote’s founder Catherine Engelbrecht put in an interview on Monday, “an archive that will finally pull the curtain back on the myth that there is no voter fraud.”

But it seems that the evidence of massive voter fraud that Engelbrecht hoped to expose failed to materialize. In the week that the app was available, users recorded only 18 incidents of election irregularities, the vast majority of which had nothing to do with True the Vote’s policy priorities.

Three reports were of suspected “voter intimidation” — one, a report of a camera in a polling place, another of an elderly woman who claimed a poll worker snatched her ballot out of her hands when she was done with it, and one from a Houston voter who was very concerned about an “African American woman” standing nearby while she voted:

Only one app user reported a suspected case of voter impersonation — the main bugaboo behind restrictive voter ID laws — an Iowan who reported getting a call about a rejected absentee ballot despite never having submitted one.

Ironically, one report to True the Vote’s app chronicled a voter’s struggle with an overly restrictive voting law that True the Vote supports. An Ohio voter reported casting a provisional ballot because they had moved since last voting. This voter would have been allowed to cast a ballot if Ohio permitted same-day voter registration, a practice that True the Vote opposes. The voter reported that a number of others in their precinct were experiencing the same problem:

Groups like True the Vote have raised the specter of widespread voter impersonation fraud in order to push for restrictive laws that make it harder for large segments of the population to vote. Their own app shows how wrong-headed they are.

In the run-up to the first general election in which Kansans have been required to provide one of a narrow set of “proof of citizenship” documents in order to register to vote, nearly 20 percent of voter registration applications in the state have been rejected or suspended, according to a Kansas political science professor.

University of Kansas professor Patrick Miller told Kansas City’s NPR affiliate last week that a large percentage of these suspended or rejected registrations are from independents, “essentially making the electorate more Republican”:

An even larger group than those who have had ID problems at the polls are those voters who haven’t yet proven U.S. citizenship, another provision of the new law. There are 22,468 voters whose registrations are suspended because they are lacking citizenship documentation, according to the Secretary of State’s office. That’s larger than the population of Prairie Village, a Kansas City suburb.

“This is a big change for Kansas. In 2010, we only rejected .03 percent of voter registration applications,” said Patrick Miller, a University of Kansas assistant political science professor. “Whereas in 2014, we’ve suspended or rejected almost 20 percent. That’s a massive increase.”

Of the nearly 22,468 suspended registrations, 18 percent are Democrats, nearly 23 percent are Republicans and a whopping 57 percent are independents, or unaffiliated. The new law has effectively made the electorate more partisan, Miller said.

“It’s filtering out independents, the swing voters, making proportionately the electorate more Democratic, more Republican,” Miller said. “In Kansas, the effect of this is essentially making the electorate more Republican, given that Republicans have a registration advantage here.”

The new Kansas law was championed by Republican Secretary of State Kris Kobach, who has also been in charge of implementing it. Kobach is facing his own tough reelection battle this year thanks in part to the mess created by his new voting restrictions.

In the run-up to the first general election in which Kansans have been required to provide one of a narrow set of “proof of citizenship” documents in order to register to vote, nearly 20 percent of voter registration applications in the state have been rejected or suspended, according to a Kansas political science professor.

University of Kansas professor Patrick Miller told Kansas City’s NPR affiliate last week that a large percentage of these suspended or rejected registrations are from independents, “essentially making the electorate more Republican”:

An even larger group than those who have had ID problems at the polls are those voters who haven’t yet proven U.S. citizenship, another provision of the new law. There are 22,468 voters whose registrations are suspended because they are lacking citizenship documentation, according to the Secretary of State’s office. That’s larger than the population of Prairie Village, a Kansas City suburb.

“This is a big change for Kansas. In 2010, we only rejected .03 percent of voter registration applications,” said Patrick Miller, a University of Kansas assistant political science professor. “Whereas in 2014, we’ve suspended or rejected almost 20 percent. That’s a massive increase.”

Of the nearly 22,468 suspended registrations, 18 percent are Democrats, nearly 23 percent are Republicans and a whopping 57 percent are independents, or unaffiliated. The new law has effectively made the electorate more partisan, Miller said.

“It’s filtering out independents, the swing voters, making proportionately the electorate more Democratic, more Republican,” Miller said. “In Kansas, the effect of this is essentially making the electorate more Republican, given that Republicans have a registration advantage here.”

The new Kansas law was championed by Republican Secretary of State Kris Kobach, who has also been in charge of implementing it. Kobach is facing his own tough reelection battle this year thanks in part to the mess created by his new voting restrictions.

One influential issue at the ballot box this year is the future of how we cast our ballots. In secretary of state races throughout the country, voters will be choosing who runs their elections — and how open those elections are to all voters.

As Republican lawmakers continue to enact news laws aimed at curtailing the rights of voters, secretary of state elections have taken on renewed importance.

We’ve picked three key secretary of state races that we’ll be watching closely Tuesday and added a few more influential races that are also worth keeping an eye on. (And this isn’t even counting states like Florida and Pennsylvania, where the secretary of state is picked by the governor, leaving the gubernatorial elections will have even stronger voting rights implications.)

Kansas

Perhaps the hardest-fought and most-watched secretary of state race this year is taking place in the heavily Republican Kansas. And that’s all because of the national profile and extreme agenda of one man: incumbent Secretary of State Kris Kobach.

Kobach won his position handily in 2010, but is facing an unexpectedly tough fight to hold onto it. Part of the reason is because he’s kept up his out-of-state anti-immigrant work: He still holds a position at IRLI and jets around the country advising states and localities that have agreed to be his policy guinea pigs, prompting his critics to complain that he’s not spending enough time in Kansas. And part of it is because he’s brought his activism home, using his platform in Kansas to push some of the most extreme voting restrictions in the country by hyping fears that undocumented immigrants are voting en masse in Kansas.

In 2011, at Kobach’s urging, Kansas passed a restrictive voter ID law that included a requirement that those registering to vote provide a passport, birth certificate, or similar “proof of citizenship" to elections authorities. The proof-of-citizenship provision, which took effect this year, has thrown Kansas voter registration into chaos. Less than one week before the election, 22,394 potential Kansas voters are unable to cast ballots because they had not provided an acceptable form of citizenship documentation. In addition, Kobach has placed an estimated 300-400 voters in a special voting rights “tier” in which they can vote only in federal elections and not in state elections. Kobach has proudly reported that of the 200 people who were placed in this special class of disenfranchised voters in this summer's primary election, only one bothered to show up to cast a half vote.

Kansans became even more leery of Kobach’s priorities this year when he spent $34,000 in taxpayer money trying to keep a Democratic senate candidate, Chad Taylor, on the ballot after he dropped out to make way for the independent challenging Republican Sen. Pat Roberts. Kobach only relented when the state supreme court ordered him to, and even then he tried (unsuccessfully) to find a way around the order.

Before Kansas ushered in its restrictive “proof of citizenship” law, Arizona was already fighting for a similar measure. In 2004, Arizona voters passed Proposition 200, a medley of anti-immigrant and voter suppression measures including a requirement that those registering to vote present one of a narrow set of documents to prove that they are citizens. The Supreme Court struck down the provision in 2013, saying that it was preempted by federal law — but left a loophole, suggesting that Arizona could sue the federal Election Assistance Commission to require that federal voter registration forms used in the state include the extra “proof of citizenship” requirement. So Arizona did just that, joined by Kansas under Kobach.

That case is still working its way through the courts, but it’s left a peculiar situation in Kansas and Arizona where Kobach and his Arizona counterpart Secretary of State Ken Bennett have set up dual-track voting systems in their states in which people who register to vote with a federal form but do not provide additional citizenship documents are allowed to vote in federal elections, but not in state elections. As we noted above, of about 200 Kansans on the special limited-rights voting track in this year’s primary election, just one voted. In Arizona, about 1,500 were put on the limited track, and 21 cast ballots.

Reagan also struggled this week to explain her vote for Arizona’s so-called “birther bill,” which would have required presidential candidates to prove to the secretary of state that they are native-born American citizens.

Other States To Watch: Colorado, New Mexico, Arkansas, Iowa

In Colorado, Republican Secretary of State Scott Gessler — a key Kobach ally and crusader against the supposed scourge of Democratic “organized voter fraud” who last year tried to stop county clerks from sending ballots to voters who had not voted in the the last election — is stepping down this year, having tried and failed to get his party’s gubernatorial nomination. In the race to replace him are Republican El Paso County Clerk Wayne Williams, described by the Denver Post as Gessler’s “lone public ally” among clerks in the ballot controversy, and Democratic attorney Joe Neguse. The two differ on the sweeping elections overhaul Colorado passed last year, which allows same-day voter registration and requires the state to mail a ballot to every voter.

Then, the next day, renowned conservative 7th Circuit judge Richard Posner requested a full-court rehearing of the challenge to Wisconsin’s law, in the process offering a blistering takedown of the voter-ID crowd’s arguments. "There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens,” he wrote. He added a special dig at the advocacy group True the Vote, calling some of their supposed evidence of voter-impersonation fraud “goofy” and “paranoid.”

All of which made a Heritage Foundation panel today called “Keeping Elections Honest” seem like it was taking place in an alternate reality, one in which the extremely rare voter-impersonation fraud is in fact rampant and in which laws making it more difficult to vote do not have negative effects.

The Heritage discussion featured some of the nation’s top proponents of voter suppression measures, including Heritage’s Hans von Spakovsky, Kansas Secretary of State Kris Kobach (the brains behind anti-immigrant and voter suppression measures around the country), Kobach’s Colorado counterpart Scott Gessler and True the Vote’s Catherine Engelbrecht.

Kobach spent part of his presentation attempting to refute the GAO study, but the court rulings went mostly unmentioned.

This alternate reality was perhaps most stark when, during a question-and-answer session, a reporter asked Kobach about the two-tiered voting system he’s instituted in Kansas for the coming election. Kobach and Arizona Secretary of State Ken Bennett are in the process of suing the Election Assistance Commission to include a more restrictive “proof of citizenship” requirement on the federal voter registration forms it uses in those two states. In the meantime, Kansas and Arizona are allowing people who register using the federal form without providing additional documentation to vote…but only in federal elections. (Votes those people cast in state-level elections won’t be counted.)

About 1,500 Arizonans and 200 Kansans were put in this special federal-only voting tier in the primary.

Kobach, far from seeming concerned about this state of affairs, proudly reported that of the 200 Kansans to whom he gave special limited voting rights, only one bothered to show up at the polls.

In the primary on August 5, we had fewer than 200 total voters in the state who had registered using the federal form and had not provided photo ID. Using that number, we then created a sort of federal-elections-only voter roll, if you will, so a roll in addition to the main voter roll. And it didn’t include all of the 105 counties, it included a minority of the counties. And then those people, when they showed up, they were to be given a provisional ballot and told that they would be — actually it would occur on the back end, even if the poll worker didn’t know that that’s why they were being given a provisional ballot, the county canvas would count only the federal elections on the ballot.

…

So anyway, to answer your question, we are going to be doing a count, a final count – our registration actually closes today, this is the final day to register in Kansas – as soon as it closes, we’ll have a final count. My guess is it probably will be in the range of maybe 300-400, we’ll know soon what that number is, for the whole state. And by the way, of those fewer than 200 people— if memory serves, it was like 186 or something like that — only one actually showed up to vote out of that entire number. So, we’ll see what the number is. So the numbers are actually pretty small and pretty manageable right now and we’re hopeful that we’ll get a decision that will be a favorable one and then we won’t have to maintain a separate, federal-elections-only list.

But since then, a new provision in the law has taken effect, making it even harder to vote in Kansas. As of last month, tens of thousands of Kansans had had their voter registrations suspended because of failure to provide one of a narrow list of “proof of citizenship” documents required under this new, Kobach-backed provision.

The “proof of citizenship” fiasco has become a main issue in Kobach’s tough reelection fight, causing many moderate Republicans to break ranks and back his Democratic opponent Jean Schodorf.

So, unsurprisingly, Kobach is not thrilled with the GAO study showing that even the first step of his “Cadillac” plan is driving people from voting, telling the Wichita Eagle that the report from the nonpartisan agency is just “dead wrong.”

“I think the GAO just got it dead wrong,” Kobach told The Eagle Wednesday. “This year we have a very competitive U.S. Senate race and lots of get-out-the-vote efforts. It’s a huge factor in driving turnout when campaigns spend this kind of money.”

Kobach also said it would have been more accurate to compare Kansas’ turnout in 2012 to its turnout in 2000, the last time there were no U.S. Senate or statewide offices on the ballot. In 2000, voter turnout was 66.7 percent, and in 2012, it was 66.8 percent.

The report says voter turnout decreased in Kansas and Tennessee from the 2008 to the 2012 general elections to a greater extent than turnout decreased in selected comparison states – Alabama, Arkansas, Delaware and Maine. Tennessee’s secretary of state, Tre Hargett, also called the study flawed.

The GAO stood by its study, saying its “methodology was robust and valid.”

Rebecca Gambler, director of homeland security and justice issues for the GAO, said the agency selected Alabama, Arkansas, Delaware and Maine for comparison because they did not have any changes to their state voter ID requirements between 2008 and 2012.

“They didn’t have other contemporaneous changes. They had similar election cycles to Kansas and Tennessee,” Gambler said.

The GAO reported that its analysis “suggests that the turnout decreases in Kansas and Tennessee beyond decreases in comparison states were attributable to changes in the two states’ voter ID requirements.”

In response to the Supreme Court’s 5-4 vote today to block early voting in Ohio less than 24 hours before it was set to begin, Ohio members of People For the American Way Foundation’s African American Ministers Leadership Council (AAMLC) released the following statement:

“Today the Supreme Court demonstrated, yet again, that it is not interested in protecting the right of everyday Americans to participate in our democracy. From making it easier for the super-rich to buy elections to coming down on the side of those who want to block access to the polls, the conservative majority of the Roberts Court is making it crystal clear that they will not stand up for a democracy of, by, and for the people.

“The right to vote is the most fundamental right, and responsibility, that we have in a democracy. As a country, we should be working to expand access to voting, not making it harder to cast a ballot. We’re deeply disappointed that the Supreme Court has failed to protect voting rights in our state today.”

On September 17, 85 AAMLC members joined with fellow Ohio clergy in meetings with the offices of state House and Senate members to share their thoughts on the importance of protecting, and removing barriers to, the right to vote.

People For the American Way Foundation’s African American Ministers Leadership Council represents an ecumenical alliance of 1,500 African-American clergy working toward equality, justice and opportunity for all.

The beginning of a new Supreme Court term has become a time to worry, “What’s next?” In the past two terms alone, often in 5-4 decisions, the Roberts Court has severely undermined the Voting Rights Act, continued its assault on the American people’s efforts to limit money in politics, strengthened the hand of employers who discriminate, significantly eroded church-state separation, discovered religious rights for for-profit corporations seeking to deny female employees needed contraception coverage, undercut unions, and found ways to help large corporations bypass laws designed to limit their power over small businesses and ordinary people.

As bad as the Roberts Court has been, there have also been some good decisions in the most recent terms. For instance, the Court struck down the odious Defense of Marriage Act, upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, and unanimously recognized our Fourth Amendment right to privacy concerning our smart phones.

The 2014-2015 Term is set to begin on October 6, the traditional First Monday in October, and the Court will be hearing a number of important cases. At the same time, perhaps half the cases it will hear this term have not been determined or announced, and there is substantial speculation on whether it will hear cases on several high-profile issues, marriage equality most prominent among them. Below is a summary of some of the major cases the Court may hear this term, along with cases already scheduled that we will be following.

CASES THAT THE COURT MIGHT HEAR

MARRIAGE EQUALITY

If the Court accepts a marriage equality case, it will obviously become the blockbuster case of the term (and perhaps the decade). The Court has already been asked to hear appeals of pro-equality rulings by three circuit courts: From the Tenth Circuit are Herbert v. Kitchen (Utah) and Smith v. Bishop (Oklahoma). From the Fourth Circuit are Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (all Virginia). From the Seventh Circuit are Bogan v. Baskin (Indiana) and Walker v. Wolf (Wisconsin). While states and government officials who lost in the lower courts are filing the appeals, the couples who won the cases are also urging the Court to hear the appeals, so there can finally be a national resolution to the issue.

Should one of the remaining circuit courts uphold a state marriage ban, the resulting split among circuits on such a major constitutional issue would almost guarantee review by the Supreme Court. But if every circuit continues to rule the same way, the Justices might decide to let the issue be resolved there.

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can’t change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation’s highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy’s position, might not want to risk a 5-4 ruling in the “wrong” direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went “too far, too fast,” provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw “no urgency” for the Court to take up the issue now, although she added that she expects the Court to take it up “sooner or later.”

Should the Court grant cert on one or more of the appeals, it could answer a number of critically important questions in addition to whether states can prohibit same-sex couples from marrying.

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court’s discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court’s eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.

ACA SUBSIDIES

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law’s opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” noting that “[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble.” The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit’s.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.

CONTRACEPTION COVERAGE AND RELIGIOUS NONPROFITS

The Roberts Court may hear one or more cases involving religious nonprofits that oppose the ACA’s contraception coverage requirement, in a sequel to Hobby Lobby v. Burwell. In that case, the Roberts Court gave certain for-profit corporations religious liberty rights under the Religious Freedom Restoration Act (RFRA), then completely rewrote the law to give the chain store the right to “exercise” its religion by refusing to comply with the ACA’s contraception coverage requirement.

Under RFRA, a federal law cannot impose a substantial burden on a person’s religious exercise unless it is in furtherance of a compelling governmental interest, and it is the least restrictive means of doing so. In Hobby Lobby, the Roberts Court concluded that the corporation and its owners suffered a “substantial” burden” on their religious exercise because the owners were offended by the contraception coverage requirement, even though it did not restrict or burden what they may believe or do. The majority also concluded that the law was not the least restrictive means of furthering the government’s interest in women’s health, because the Administration offers religious nonprofits an accommodation: They are exempt if they simply sign a form certifying that they are a religious nonprofit that objects to the provision of contraceptive services, and provide a copy of that form to their insurance issuer or third-party administrator, which then has the responsibility to pay for and provide the coverage. (Churches, in contrast, are wholly exempt.) The Roberts Court concluded that the federal government can make this accommodation available to for-profit corporations, meaning the coverage requirement is not the least restrictive means of achieving the ACA’s goal.

But three days later, the Court issued a temporary injunction against enforcing even this accommodation against Wheaton College, a non-profit religious institution that argued that the accommodation substantially burdens its religious freedom. This prompted a furious dissent from the three women Justices. Although the merits of the case are still being argued before a lower federal court, this was an ominous sign of how the Roberts Court will address the legal question when it inevitably reaches the high court.

Another high-profile case (or one similar to it) that may reach the Court involves Little Sisters of the Poor. This religious nonprofit organization, too, has a religious objection to the accommodation that was designed to meet its religious objections, arguing that the form is like a permission slip that would trigger contraception coverage, making the nuns complicit in sin. However, the Little Sisters’ insurer is classified as a “church plan,” which is actually exempt from the ACA requirement. So regardless of whether the Little Sisters signed the form, their employees would still not have the contraception coverage. Nevertheless, last January, while its RFRA suit against the contraception coverage provision was before the Tenth Circuit (where it is still pending), the Supreme Court enjoined the federal government from enforcing the law until a final resolution on the merits.

It seems likely that there will be a request that this issue be considered by the Supreme Court at some point this term, either through one of these cases or one similar to them.

CASES CURRENTLY BEFORE THE COURT

EMPLOYMENT DISCRIMINATION AND WORKERS’ RIGHTS

Young v. UPS: Discrimination on the basis of pregnancy

The Supreme Court is to decide to what extent employers can treat pregnant workers temporarily unable to work differently from other workers temporarily unable to work.

This case involves Peggy Young, a pregnant employee of UPS with temporary medical restrictions on how much she could safely lift. UPS did not make any accommodations for her, such as temporary alternative work. As a result, she spent several months on unpaid leave, during which she lost her medical coverage.

In 1976, the Supreme Court ruled that discriminating against employees who are pregnant was not sex discrimination under Title VII. Congress corrected that interpretation of the law in 1978 with the Pregnancy Discrimination Act (PDA), which has two relevant provisions. First, it specifies that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.

The second provision explains how to apply that general principle: It says that women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” This establishes a basis of comparison. So while a typical sex discrimination case looks at how a female plaintiff is treated in comparison to similarly situated men, a PDA case looks at how she is treated in comparison to non-pregnant workers with similar ability (or inability) to work.

UPS’s collective bargaining contract calls for UPS to accommodate temporarily disabled employees if the disability is due to an on-the-job injury, or if they have lost their DOT certification to drive. UPS also accommodates employees who have a permanent impairment under the Americans With Disabilities Act. UPS says its policy is “pregnancy-blind:” They claim they are treating Young the same way they’d treat a non-pregnant employee whose injury doesn’t fit any of the above conditions.

But Young argues that isn’t the proper analysis under the PDA. She points out that UPS would have made an accommodation for someone “similar in their ability or inability to work” to her if they were in one of those three categories. So, she concludes, the plain text of the PDA requires UPS to accommodate her, as well.

The Supreme Court is to decide if employers can deny overtime pay to employees at “customer fulfillment” distribution centers for the time they spend waiting for mandatory security screenings.

This is a class-action lawsuit brought by Jesse Busk and Laurie Castro, two former employees of Integrity Staffing Solutions, which provides workers to work in the warehouses of companies like Amazon.com. At the end of the shift, the company requires every employee to go through a security check before they leave the facility to make sure they aren’t stealing the merchandise. The employees wait as long as 25 minutes to be searched. Busk and Castro claim that they should have been paid overtime for this time under the Fair Labor Standards Act (FLSA), as should all current employees, as well.

FLSA requires overtime pay when a covered employee works more than 40 hours in a workweek. In 1947, Congress helped define what counts as “work” by passing the Portal-to-Portal Act (PPA), which says that FLSA’s overtime requirement doesn’t apply to activities that are “preliminary” or “postliminary” to an employee’s primary job responsibilities. In a 1956 case called Steiner v. Mitchell, the Supreme Court interpreted the PPA as requiring overtime only for tasks that are an “integral and indispensable part of the principal activities for which covered workman are employed.”

Busk and Castro say that any activity required by and beneﬁtting the employer (such as the security searches) are part of the actual job, not “postliminary” to it, so they count as time at work under FLSA and should generate overtime pay. They get support from an amicus brief submitted by the National Employment Lawyers Association, which details how loss-prevention activities have become integrated into the modern retail work routine, making searches like those at issue here part of an employee’s principal activities.

The workers won at the Ninth Circuit, but the court used different reasoning: that the searches are “postliminary” (so the Portal-to-Portal Act applies), but that they are an “integral and indispensable part” of the workers’ principal activities and therefore subject to overtime pay. Integrity (supported by an amicus brief from the Obama Administration) asserts that the searches are “postliminary” to work, are not an “integral and indispensable part” of the employees’ principal activities and, therefore, don’t trigger the overtime requirement.

Part of the company’s argument seems to be a results-based pitch to a corporate-friendly Court: In its certiorari petition urging the Justices to hear its appeal, Integrity Staffing wrote that since the Ninth Circuit ruling, “plaintiffs’ lawyers have brought nationwide class actions against a number of major employers—including Apple, Amazon.com, and CVS—seeking back pay (plus overtime and penalties) for time spent in security screenings.” Notice that it isn’t employees who are suing, but “plaintiffs’ lawyers,” a framing that is red meat for right-wing ideologues. This argument also seems to have less to do with discerning congressional intent and more to do with protecting large corporations.

Mach Mining v. EEOC: Pre-lawsuit settlement efforts by the EEOC

The Supreme Court is to decide if employers can escape liability for illegal discrimination by arguing that the EEOC failed to make a sufficiently good-faith attempt to reach a settlement with the employer.

Mach Mining has never hired a woman for a mining position. A woman who had been turned down several times for a coal mining job filed a sex discrimination complaint with the Equal Employment Opportunity Commission, a step that Title VII requires before filing a lawsuit. EEOC looked into the allegation, found it had merit, and – again, as required by Title VII – sought to negotiate an end to the alleged sex discrimination “by informal methods of conference, conciliation, and persuasion” before suing. After several months without success, the EEOC notified the company that it felt further efforts would be futile and initiated a lawsuit. Mach Mining says the case should be dismissed on the grounds that the EEOC didn’t make a good-faith conciliation effort. In response, the EEOC says Title VII doesn’t allow such a defense.

While several other circuits have ruled otherwise, the Seventh Circuit in this case concluded that Title VII cannot be interpreted to allow courts to inquire into the adequacy of the EEOC’s conciliation efforts. For one thing, Title VII has no express provision for an affirmative defense based on a defect in the EEOC’s conciliation’s efforts. It also calls for the EEOC to “endeavor” to end the discrimination through “informal methods of conference, conciliation, and persuasion.” If it can’t reach a result “acceptable to the Commission,” it can sue. The Seventh Circuit interpreted this as giving the EEOC great deference.

The court also noted that Title VII makes the process confidential, with penalties for making the information public without the consent of everyone concerned. That could prevent the EEOC from showing the court the evidence that it had sought to conciliate in good faith. It seems unlikely that Congress wrote Title VII to require the EEOC to defend its conciliation efforts in court but made its ability to do so dependent on the permission of the employer being sued. The court also concluded that there would be no meaningful standard of review. For instance, just how hard should the agency pursue an agreement?

A Supreme Court ruling for the employer could give employers a significant tool to stymie legitimate lawsuits against unlawful employment discrimination. As the Seventh Circuit wrote:

Simply put, the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court. Such disputes impose significant costs on both sides, as well as on the court, and to what end?

All the employer should legitimately hope to gain is some unspecified quantum of additional efforts at conciliation by the EEOC. The result of such a defense, as we have said in a closely related context, is to “protract and complicate Title VII litigation, and with little or no offsetting benefit.”

RELIGIOUS LIBERTY

Holt v. Hobbs: Right of a Muslim prisoner to grow a short beard

The Supreme Court is to address whether a state prison’s prohibiting a Muslim prisoner from growing a half-inch beard violates the federal Religious Land Use and Institutionalized Persons Act.

This case originated with a handwritten request to the Supreme Court from Gregory Holt (aka Abdul Maalik Muhammad), a Muslim prisoner in Arkansas, to hear his case. He states that his religious beliefs require him to have a beard, and he seeks to grow a half-inch beard. The state Department of Corrections prohibits beards generally, but allows quarter-inch beards grown for medical reasons. Muhammad sees his request as a compromise (since his religious beliefs really would have him grow it much longer) that has been accepted in prisons elsewhere.

Since he is in a state prison, Muhammad’s case is governed by a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Passed unanimously by Congress in 2000, RLUIPA requires prisons accepting federal funds to give greater religious liberty protections to inmates than is required by the First Amendment’s Free Exercise Clause. Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Hobby Lobby, RLUIPA is triggered when the government imposes a “substantial burden on the religious exercise” of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The state argues that the no-beard policy furthers the compelling government interests in prison safety and security, and that the proposed half-inch accommodation would not be as effective as the no-beard rule in achieving those purposes. For instance, they provide the opinions of penal experts that prisoners could use the beards to hide contraband, and that escaped prisoners could too easily and quickly change their appearance simply by shaving. Muhammad (now represented by counsel) argues that the lower courts, which ruled against him, did not provide the strict scrutiny of the state’s arguments that is required by RLUIPA.

In Hobby Lobby, the Supreme Court significantly rewrote RFRA, watering down the “substantial burden” requirement and applying the religious liberty law to for-profit corporations. Neither factor is relevant to this case, meaning the Court could rule in favor of Muhammad without rewriting the law. But the Roberts Court is known for playing the “long game.” Even if the Court rules unanimously for Muhammad, they may not all agree on the reasoning: The conservatives could write an opinion designed to be cited in future RFRA litigation strengthening the hands of those on the right who would reshape RFRA from a shield against government oppression into a sword.

The Supreme Court is to address whether Alabama engaged in unconstitutional racial gerrymandering when it drew new state House and Senate district lines that channeled large numbers of African Americans into districts that were already majority-minority.

The GOP-controlled Alabama state legislature enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black. In so doing, the legislature was seeking to achieve certain percentages of black voters in the majority-black districts. At issue is whether legislators engaged in an unconstitutional effort to separate voters by race, or whether they followed traditional redistricting criteria in a way that was necessary to comply with the Voting Rights Act.

Due to population shifts, majority-black districts established after the 2000 Census lost population and had to be redrawn after the 2010 Census to bring in new people. In some cases, the population loss was disproportionately white, meaning that a significantly higher percentage of the remaining population was African American than before. In redrawing the lines while keeping the same number of majority-black districts, the legislature made two decisions that led to what some call “bleaching” – drawing lines so that large numbers of African Americans in majority-white districts would be redistricted into supermajority-black districts, and diminishing African Americans’ political influence in much of the state.

First, they chose to reduce the permissible population difference between districts from 10% (the 2000 standard) to 2%. To achieve district populations that close to each other, many more people would have to be drawn into the modified black-majority districts than would otherwise have been necessary. That huge numbers of those people would be blacks removed from majority-white districts was determined by the second decision: Ostensibly to comply with the requirement under Section 5 of the Voting Rights Act (this was before Shelby County) that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, the African American percentages in the redrawn majority-minority districts should be at least whatever they had become in 2010.

This reapportionment was upheld by a divided three-judge federal district court. The majority concluded that race was not the predominant factor in drawing the redistricting boundaries, so that they need not be analyzed under strict scrutiny as in the 1993 Shaw v. Reno case. The majority also concluded that even if strict scrutiny applied, the legislative boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 of the Voting Rights Act, which applied at the time. The plaintiffs in this case – the Alabama Legislative Black Caucus and state Democrats – challenge those conclusions, arguing that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment.

FREE SPEECH AND SIGN REGULATIONS

Reed v. Town of Gilbert, Arizona: Municipal sign regulations

The Supreme Court will hear a church’s Free Speech challenge to city rules regulating the size and placement of various types of signs, which affect the signs it puts up to direct people to its church services.

This case was brought by a small church (25-30 adult members) in Arizona that places signs up to invite people to its weekly services and inform them where they are being held. Good News Church and its pastor Clyde Reed are urging the Court to strike down the town of Gilbert’s sign ordinance, which treats some signs (such as directional signs for events, like a fair or, in this case, a church service) differently from others (like political, real estate, or ideological signs). The different types of signs have different rules on how large they can be, and where and when they can be posted. Good News Church argues the law is an unconstitutional content-based infringement of its First Amendment rights. The lower court had upheld it as content-neutral.

Gilbert regulations generally require a permit before posting a sign, with a number of exceptions that can be posted without a permit. These exceptions (each with specific size, number, and placement rules) include construction signs, open house signs, parking signs, building identification signs, garage sale signs, street address signs, and restaurant menu signs. The church devotes much of its focus to three of the exceptions:

The church has signs in the first category to tell people about their weekly church services in the space they rent. The maximum size is smaller than political and ideological signs, fewer can be posted, and they cannot stay up nearly as long. Represented by the far-right Alliance Defending Freedom, Good News Church argues that the city is violating its First Amendment rights by applying different rules to different types of noncommercial signs based on their content. According to the church, any classification based on what a sign says is content-based and therefore subject to the highest level of scrutiny. And if the law’s purpose is, say, to promote traffic safety or aesthetics, then what difference should it make if the sign is for a church service, political candidate, or particular ideology?

A divided panel of the Ninth Amendment disagreed, ruling against the church. It said the distinctions among different types of signs are content-neutral (and thus subject to a somewhat lower level of scrutiny) because Gilbert’s interests in regulating temporary signs are unrelated to the specific content or message of the sign. Each exemption is based on objective criteria related not to the sign’s message, but to the reason for the exemption (such as need for communication about elections, or the need to let event sponsors inform people how to get to the event).

HOLDING FRAUDULENT CORPORATIONS ACCOUNTABLE

Public Employees’ Retirement System of Mississippi v. IndyMac MBS: Timing of lawsuits

The Court is to decide whether the clock stops on a deadline to sue for securities fraud when someone files a class action suit.

This case relates to a key 1974 precedent called American Pipe & Construction Co. v. Utah, where the Supreme Court ruled that the filing of a class action lawsuit stops the clock (“tolls” in legal parlance) on the statute of limitations on filing federal antitrust claims for all potential members of the class, including those who are not actively involved with or even aware of the class action lawsuit. So if a court then doesn’t certify the class for some reason or dismisses its claims, but makes that decision after the statute of limitations has passed, those who would have been included in the class have not lost their opportunity to have their day in court just because they hadn’t made an individual filing in the case.

The current case relates to the financial meltdown of the 2000s and involves federal laws in the Securities Act of 1933 prohibiting sellers of securities from misleading investors. The law has two key time limits: (1) You generally have one year to file a lawsuit, and that can be a year after the untrue or misleading statement is made or discovered. (2) But there is an additional limit, one that restricts just how long after the fact you have to discover the wrongdoing: “In no event shall any such action be brought … more than three years after the security was bona fide offered to the public [or, depending on which section of the law is involved] more than three years after the sale.” The Second Circuit concluded that the American Pipe rule did not apply to this statute.

One of the great benefits of class action litigation is that it protects the rights of people who cannot afford to themselves engage in litigation and may not even realize they have been wronged. It also vastly enhances our society’s ability to hold large corporations responsible when they violate people’s rights. The rule from American Pipe has served that purpose well. But in other contexts, the Roberts Court has significantly undercut the ability of Americans to utilize class actions to protect their rights. If the Court rules that American Pipe doesn’t apply in the securities fraud context, it will be important to see if its reasoning also undercuts American Pipe as a precedent in other contexts.

The Court is to address what investors need to prove to hold companies accountable for material misstatements in investment material.

When responding to a public offering of company shares, investors may rely on a company’s registration statement with the Securities and Exchange Commission. Under Section 11 of the Securities Act of 1933, investors can sue if that statement “contained an untrue statement of a material fact or omitted to state a material fact [that was] necessary to make the statements therein not misleading.” This case asks what investors need to prove if the purportedly “untrue statement” was the company’s opinion that it wasn’t breaking the law.

Omnicare is the nation’s largest provider of pharmaceutical care for the elderly and other residents of long-term care facilities. In Omnicare’s registration statement, it said that “we believe” that its financial relationships with pharmaceutical manufacturers were legal. The investors here claim that some of those deals constituted unlawful kickbacks. The question is whether that allegation is enough to trigger Section 11.

According to Omnicare, for the investors to have a claim under Section 11, they have to allege that Omnicare didn’t believe the statement when it was made. Otherwise, companies could be held liable for statements of opinion that turn out later not to be true. Two circuit courts have taken that view.

But in this case, the Sixth Circuit took a different approach, one that makes it easier for investors to file a Section 11 claim. That court reasoned that Section 11 is a “strict liability” statute where the state of mind of company officials isn’t relevant, so it’s sufficient to allege that the opinion was false, regardless of whether the company knew at the time it was false. That’s the ruling the investors in this case are asking the Supreme Court to uphold.

In an amicus brief, the Obama Administration takes a middle ground, in which the company isn’t held liable only because it expressed an opinion that turned out not to be true. The Administration argues that a statement of opinion is actionable under Section 11 if: (1) the company didn’t believe it at the time (which both parties in this case agree on), or (2) there was no reasonable basis for the opinion at the time, even if it was sincerely held (which Omnicare disagrees with).

Any ruling by the Roberts Court should keep in mind that Congress enacted Section 11 to encourage maximum disclosure by companies making a public offering. After all, people associated with the company know far more about the business than potential investors could ever know, and Section 11 was intended to dissuade corporations from tricking investors.

CONCLUSION

Just as the Lochner case defined the Supreme Court a century ago as it turned conservative economic policies into constitutional dogma, America finds itself living through the Citizens United era, where the Court again routinely rules in favor of corporate and other powerful interests. By the end of June, we will know if the current term will have been as damaging to Americans’ fundamental rights as recent terms have been.

Holder’s commitment to redressing racial injustice was no more warmly received by the Right than his work in support of LGBT equality. After Holder spoke out against voter ID laws, which disproportionately harm people of color, Texas Gov. Rick Perry accused him of “purposefully” “incit[ing] racial tension.” Gun Owners of America director Larry Pratt argued that Holder’s open discussion of racial discrimination in the criminal justice system means that he is the real “racist,” asserting last year that Holder wants to “intimidate the rest of the country so that we don’t think about defending ourselves” against “attacks by black mobs on white individuals.” Bryan Fischer of the American Family Association went so far as to say that Holder would never “prosecute someone if the victim is white.” And after Holder visited Ferguson, Missouri last month, David Horowitz outrageously commented that the attorney general was leading a black “lynch mob.”

And those are just a handful of the attacks the Right has leveled against Holder for his work protecting equality under the law.

The fact that the far Right has reacted with so much vitriol to the attorney general’s leadership is a sign not only of how uninterested they are in the civil rights that the Justice Department is meant to protect, but also of how effective Holder’s work has been. The next attorney general should share Holder’s deep commitment to protecting the rights of all Americans – and, by extension, make all the “right” enemies among those hoping to turn back the clock on civil liberties.

More than a year ago, the Supreme Court dealt a major blow to voting rights when they struck down a key provision of the Voting Rights Act in their Shelby v. Holder decision. In the wake of this decision, nine states and many other counties that once had to have their voting law changes approved by the federal government before they took effect — what’s known as “preclearance”— no longer have to do so. With the midterm elections rapidly approaching, where does that leave voters in the preclearance states and in other states where legal battles over voting laws are raging?

Yesterday ProPublica published a great round-up of the current landscape of voting rights across the country. Some of the lowlights included:

• Seven preclearance states have announced new restrictions since the Supreme Court rolled back the Voting Rights Act.
• [In 2012], a federal court called Texas's photo ID law [the] “most stringent in the country.” Now, it’s in effect.
• Two months after the Supreme Court ruling on the Voting Rights Act, North Carolina cut early voting and eliminated same-day registration.

ProPublica notes that while glaringly discriminatory barriers like literacy tests are behind us, these legal changes matter a great deal. As voting rights advocates have demonstrated, voter ID laws, limitations on early voting, and voter roll purges disproportionately harm communities of color and other marginalized groups. Rather, Americans agree that no one should be facing barriers to casting a ballot and participating in our democracy.

True the Vote is one of the most influential groups working to make it harder to vote by pushing for restrictive voter ID laws and launching challenges against people it thinks might be ineligible to vote, tactics which are supposedly directed at preventing voter impersonation fraud and double voting — crimes that in reality are exceedingly rare.

In order to cover up the fact that voter ID laws keep many times more people from the polls than the miniscule number of voter impersonation cases that they might prevent, groups like TTV try to conflate in-person voter fraud — the only thing actually targeted by voter ID laws — with faulty voter registration and with rare but persistent kinds of small-scale voter fraud by elected officials that they have no intention of actually combating.

A great example of this happened yesterday, when TTV reprinted a short blog post by former Bush Justice Department official and conservative activist J. Christian Adams linking to a story about “Three PA Elected Officials Charged With Voter Fraud.”

Adams offers his commentary, implying that this story proves that the numerous studies discrediting the voter ID push are just wrong:

I am curious to see if this barely reported case of voter fraud ever makes it onto one of the ‘academic’ studies purporting to demonstrate very little voter fraud. Those studies are characterized by false negatives.

A quick look at the story in question, however, shows that what happened in Pennsylvania has nothing to do with voter ID or any so-called “voter integrity” laws that Adams and TTV are promoting.

Pennsylvania requires that people requesting an absentee ballot provide a reason, which can be “illness or physical disability” that makes the voter “unable to attend his/her polling place or to operate a voting machine.” Those voters must also provide a copy of their photo ID.

The case that Adams and TTV are touting is that of three township supervisors who were charged with violating election laws in 2011, two for helping 13 elderly voters to apply for and fill out absentee ballots , despite the fact that all were physically able to go to the polls on Election Day and were thus ineligible to obtain absentee ballots in Pennsylvania. One of the supervisors is charged with helping an eligible absentee voter fill out a ballot but failing to report that he had assisted the voter.

None of this would have been prevented by a voter ID requirement. Instead, this is an instance of, at best, a misunderstanding and at worst, public officials using their insider influence to tinker with ballots.

If it’s the latter, all sorts of laws are currently on the books to prevent such instances of election fraud. But it is not something that so-called “voter integrity” activists have shown any interest in addressing, perhaps because it’s already against the law and policed. As the Brennan Center wrote in a 2007 report, such conduct “has been an issue since Senators wore togas” and is a completely separate issue from the kind of supposed fraud that groups like True The Vote claim to be fixing with suppressive voting restrictions.

It is extremely rare for individuals to vote multiple times, vote as someone else, or vote despite knowing that they are ineligible. These rare occurrences, however, are often conflated with other forms of election irregularities or misconduct, under the misleading and overbroad label of “voter fraud.” Some of these other irregularities result from honest mistakes by election officials or voters, such as confusion as to whether a particular person is actually eligible to vote. Some irregularities result from technological glitches, whether sinister or benign: for example, voting machines may record inaccurate tallies. And some involve fraud or intentional misconduct perpetrated by actors other than individual voters: for example, flyers may spread misinformation about the proper locations or procedures for voting; thugs may be dispatched to intimidate voters at the polls; missing ballot boxes may mysteriously reappear. These more common forms of misconduct are simply not addressed by the supposed “anti-fraud” measures generally proposed.

On Wednesday, PFAW joined representatives from a number of organizations similarly concerned with civil rights and the cornerstone of American democracy – the right to vote – on Capitol Hill to present Speaker John Boehner with the signatures of more than 500,000 Americans demanding that Congress move forward in restoring key provisions of the landmark Voting Rights Act.

Today, access to the voting booth has become an increasingly imperiled right for many Americans, thanks to the Supreme Court’s decision last year in Shelby County v. Holder. Across the country, states and localities are making changes to voting laws that make it more complicated and onerous to carry out a fundamental civic duty, especially for ethnic and racial minorities, the elderly, and student voters.

However, the Republican leadership in the House does not seem to share the public’s sense of urgency on compromised voting access. Tellingly, neither Speaker Boehner nor his staff acknowledged the coalition’s attempt to deliver the signatures in-person. The office that he keeps for his congressional district was locked, and knocks went unanswered, shutting out the American people, including his constituents, in the middle of a workday while Congress is in session.

In a press conference following the attempted delivery of the petitions, lawmakers and representatives from the #VRA4Today coalition of more than 50 advocacy groups spoke of the need to strengthen the rights of voters and restore the critical protections of the Voting Rights Act. Marge Baker, executive vice president of People For the American Way, said:

Repairing the damage done by the court majority in Shelby is a critical test of whether Congress can put partisanship behind to protect our democracy. The will of the people is clear: we will not tolerate voting discrimination in our country, we will not turn back the clock.

Joining in this sentiment was House Minority Whip Steny Hoyer, who urged his colleagues to support the rights of Americans to participate in their government. “The right to vote is the most fundamental right in a democracy,” he said. “It is the right to have one’s voice heard.”

The past week held both good news and bad news for voting rights, depending on your part of the country. On Friday in Ohio, an appeals court declined to put on hold a ruling that expands early voting in the state, a win for those of us who believe that voting should be fair and accessible for all people. But on the same day, an appeals court gave the okay to Wisconsin’s voter ID law — a law that had been blocked months ago by a federal judge who noted that it disproportionately affects Latino and black communities.

Commentators have noted that instating the new voter ID law in Wisconsin so close to an election could cause real confusion for voters, and advocates are asking for a re-hearing. As election law expert Rick Hasen said, “It is hard enough to administer an election with set rules — much less to change the rules midstream.”

Beyond the practical implications for voters, it’s also important to connect the dots back to how these decisions happened and who was making them. As The Nation’s Ari Berman wrote on Friday night:

[A] panel of Democrat-appointed judges on the Sixth Circuit upheld a preliminary injunction from a Democrat-appointed district court judge striking down Ohio’s cuts to early voting. Two hours earlier, however, a trio of Republican-appointed judges on the Seventh Circuit overturned an injunction from a Democratic judge blocking Wisconsin’s voter ID law.

This is why elections matter. And the courts are increasingly becoming the arbiters of who does and does not get to participate in them. [emphasis added]

This weekend, the Dallas Morning News ran a long investigative piece exposing for the first time an armed raid that state Attorney General Greg Abbott's office ordered on a Houston voter registration operation, Houston Votes, back in 2010. The aftermath played out like ACORN in miniature: Despite the fact that nobody at Houston Votes was charged with any wrongdoing, the organization folded under the pressure of Abbott’s investigation.

The story provides an interesting look at the mechanics of the GOP’s obsessive search for certain types of extraordinarily rare voter fraud in order to justify extreme measures making it harder to cast a ballot. And it also stars two people who have since become familiar names in the national effort to make it more difficult to vote: Abbott, who is now the GOP nominee for governor of Texas, and Catherine Engelbrecht, who now runs the national group True the Vote, but who got her start running a Texas Tea Party group called King Street Patriots.

On an overcast Monday afternoon, officers in bulletproof vests swept into a house on Houston’s north side. The armed deputies and agents served a search warrant. They carted away computers, hard drives and documents.

The raid targeted a voter registration group called Houston Votes, which was accused of election fraud. It was initiated by investigators for Attorney General Greg Abbott. His aides say he is duty-bound to preserve the integrity of the ballot box.

His critics, however, say that what Abbott has really sought to preserve is the power of the Republican Party in Texas. They accuse him of political partisanship, targeting key Democratic voting blocs, especially minorities and the poor, in ways that make it harder for them to vote, or for their votes to count.

A close examination of the Houston Votes case reveals the consequences when an elected official pursues hotly contested allegations of election fraud.

The investigation was closed one year after the raid, with no charges filed. But for Houston Votes, the damage was done. Its funding dried up, and its efforts to register more low-income voters ended. Its records and office equipment never were returned. Instead, under a 2013 court order obtained by Abbott’s office, they were destroyed.

…

Fred Lewis formed Texans Together in 2006.

The nonprofit community organizing group used volunteers to register voters in 2008 under the name Houston Votes. It registered only about 6,000 people that year.

For the next big election, in 2010, Lewis wanted to register 100,000 new voters in Harris County. He knew he couldn’t hit that number with volunteers. Houston Votes decided to use paid workers.

By that summer, Houston Votes had come to the attention of the King Street Patriots, a Houston-based tea party group. At the group’s regular meeting in Houston, its leader, Catherine Engelbrecht, talked about the New Black Panther Party. She then played a Fox news clip of an unidentified black man saying: “We have to exterminate white people off the face of the planet.”

The clip was 5 years old. It came from a forum in Washington about media coverage of Hurricane Katrina. But after the clip ended, Engelbrecht showed a picture of a house in Houston. She said it was the office of the New Black Panthers, at Main and Dowling streets.

Dowling Street is infamous for a 1970 gun battle between police officers and African-American militants, one of whom was killed.

“Houston has a new neighbor,” Engelbrecht said. She added that a person outside the house appeared to be an employee of Houston Votes.

The house shown on the screen was the office of Houston Votes. It had nothing to do with the New Black Panther Party. And it was about 9 miles from Dowling Street.

Two weeks later, the King Street Patriots held another meeting. Paul Bettencourt, the former Harris County tax assessor-collector, was a guest speaker.

He said Houston Votes was worse at registering voters than ACORN, the Association of Community Organizations for Reform Now. Dozens of ACORN employees across the nation were convicted of voter registration fraud.

The next day, Bettencourt’s successor as tax assessor-collector, fellow Republican Leo Vasquez, held a news conference.

“The integrity of the voter roll of Harris County, Texas, appears to be under an organized and systematic attack by the group operating under the name ‘Houston Votes,’” he said.

Houston Votes had submitted about 25,000 voter registration applications. Vasquez said many were duplicates, or already registered. Only 7,193 were “apparently new voters,” he said.

Houston Votes later pointed to public records showing that at the time of the news conference, about 21,000 of the 25,000 who applied to register were already validated by the county and pending final approval by the secretary of state. Among those 21,000, the state had already given final approval to 7,193.

Vasquez announced he was referring the matter for “investigation and possible prosecution” to the Texas secretary of state and the Harris County district attorney.

The secretary of state, who advises local election officials on election laws, forwarded Vasquez’s information to the attorney general’s office on Sept. 14, 2010.